The Baton Rouge advocate reported yesterday that the mother of a baby killed in a car crash has been charged with negligent homicide.
I’m not one to say that the loss of a child is by definition punishment enough when a parent or parents are responsible for fatal injuries to a child. I’m perfectly fine with charging parents who refuse to get medical care in the face of an obvious health crisis. I’m fine doing that whether they did so because of some issue that ultimately has a reasonable basis (:cough: Tuskeegee :cough:) or whether they did so because of some issue that has nothing rational even at some distant core (:cough: faith healing :cough:). The charges, however, need to be proportionate. In this case, they clearly are not. But you’ll have to stay with me to get more on that later.
The criminal justice system in the USA has terrible problems, and most of the time we associate these with the country’s racist history – for good reason. At its most rotten, corrupt core, however, are two doctrines that are in direct conflict with the USA’s own constitution: prosecutorial discretion and immunity. Discretion permits prosecutors to charge persons guilty of similar behavior with different crimes, or to charge some with a crime and choose not to indict others at all. The thinking is that resources are limited and some people are more amenable to intervention to change bad behavior. If a prosecutor feels that one person is intransigent and another is already reformed, why should we have equal punishment? In theory, this different treatment is permissible even with wildly varying treatment and the prosecutor is given broad discretion, but that discretion, again in theory, does have limits. If congress cannot pass a law that discriminates based on race, then, say murder statutes cannot discriminate on the race of the perp or the victim. Nor can any other law. Thus the prosecutor can have no basis in law for treating different suspects differently on the basis of race.
Unfortunately, there is also the doctrine of prosecutorial immunity. The thinking here is that prosecutors must try some cases where people are not found guilty or the jury trial system is a mere sham. If prosecutors could be held accountable for abuses of power, then wouldn’t anyone found innocent want to file a suit against a prosecutor? Is it really reasonable of human beings that when actually believing someone to be guilty, no prosecutor in the country is going to call the defendant names or disparage the defendant’s ethics or character over drinks with colleagues? And if some percentage of those persons are found not guilty, wouldn’t they then be likely to use such statements in an action to penalize the prosecutor, even though the prosecutor is actually most likely to make such statements when acting ethically (i.e. prosecuting persons that they actually believe are guilty)?
And so we have a doctrine of immunity that, when combined with broad discretion makes it impossible to hold bad prosecutors accountable. Though in theory the government cannot discriminate racially, the check against such racism is a lawsuit. But there is no recourse when a prosecutorial office is enacting racism by overcharging defendants in one racial or ethnic group to scare them with long sentences into agreeing to plead to a lesser crime (that might still be disproportionately harsh compared to the underlying behavior) and then undercharging or not charging at all defendants of another racial or ethnic group. The prosecutorial immunity prevents even quite reasonable suits from going forward. Ultimately this means that there is no meaningful check on prosecutorial violations of right.
In a racist country, that means that racism will become entrenched in prosecutorial offices to varying degrees. In a sexist country, that means that sexism will become entrenched in prosecutorial offices to varying degrees.
And thus Baton Rouge.
About a month ago, 8 people were traveling in a single Nissan, including 4 adults and 4 children. This meant that there were more people in the car than seatbelts. One child was an infant, in an infant’s car seat/carrier. The child was about 1 year old and the child’s Black mother was not driving.
Another person was traveling alone, driving in a single Corvette.
The vehicles were traveling in opposite directions on a road called Airline Highway. While I wasn’t there, the descriptions of the crash are clear: the Nissan was turning left onto Florline Boulevard on a green light. The Corvette was proceeding forward through the intersection on the same green light. The Nissan made it partway through its turn before being struck by the Corvette. The impact rolled the Nissan and everyone inside was injured to some degree, but the injuries to the infant, her name was Seyaira Stephens, were more severe and ultimately fatal.
Normally in such a crash you’d assign blame to the driver of the Nissan in which Seyaira Stephens was riding. After all, legally the vehicle turning left must yield to the vehicle that is not turning. But the driver’s mistake becomes more understandable when calculations based on impact effects are compared with the sensors responsible for activating the Corvette’s airbag and the two are exactly in agreement that the Corvette was traveling 94 miles per hour at the moment of impact.
That’s the moment of impact, mind you, so if the driver of the Vette put on the brakes for even a moment before the impact, the initial speed could have been much higher, and even just letting one’s foot off the gas for a second before impact would have made the traveling speed a bit higher. The speed limit on that stretch of Airline Highway is 50 mph.
And so we can picture the scene: The driver of an overcrowded Nissan is proceeding with reasonable caution. Wanting to turn left, she looks ahead and sees the headlights of an oncoming car, but the lights are so distant that they should not affect the safety of her turn. She begins her turn, but the lights close the distance at an uncommon and literally surprising rate. Without the ability to accelerate fast enough to get out of the way and in the middle of a turn already (turning left harder risks crashing into anyone stopped in the oncoming lanes of Florline and turning back right only turns a t-bone into a head-on), at the time the Corvette’s illegal, unreasonable, and dangerous speed becomes apparent, there is literally nothing the driver of the Nissan could do to prevent the collision.
The driver of the Corvette was arrested for negligent homicide after the death of Seyaira, but several weeks later her mother was also arrested for the same exact crime. Why arrest this mom for negligent homicide? Was there a certain recklessness to taking children in a car with 7 seatbelts for 8 persons? Sure. But there are many laws to prosecute parental negligence and only a tiny handful are as severe as negligent homicide. What, then, justifies subjecting the Corvette driver and Seyaira’s mother to the same legal punishment?
Baton Rouge says that Seyaira could not have suffered the particular injuries she did if the child’s carseat had been fully and properly secured to the car via a seatbelt in good working order. It’s even possible, they say, that the child was strapped into the carseat but the carseat was then held on someone’s lap or otherwise not secured to the structure of the car at all. Moreover, the straps on the carseat weren’t as tight as they needed to be for full security. Being a parent, I know that this can happen at the end (or beginning) of winter when different amounts of clothing or blankets are needed from day to day. Yes, it’s not ideal. Yes, it’s a risk to the child. No, it’s not something that deserves a sentence of hard labor for not less than two nor more than five years. Even the fact that the carseat was either negligently secured or potentially even carried on a lap (or otherwise not secured directly to the car) seems rather insufficient to justify that sentence.
So why are the Corvette driver and Seyaira’s mom facing the same sentence? If failing to check the straps and working order of a seatbelt cannot justify the same sentence as driving a hundred miles an hour into the side of another vehicle, then what does?
Well, there’s always the fact that Seyaira’s mom is a Black woman and the driver of the Corvette is an off-duty cop.
Let’s be clear about the arrest as well: the prosecutors have not actually indicted Seyaira’s mom, nor have they indicted the off-duty cop. So far, these are only the actions of the police department, the same police department that is paying the driver’s salary while he takes a leave to deal with the trauma of being investigated. But there simply is no reasonable case for treating the mother’s actions and the driver’s actions as anywhere close to morally equivalent. Even if the prosecutor’s office later decides to charge the mother differently (or not charge her at all), there has already been unreasonable and racist and sexist treatment of a Black woman in this case. Yet, prosecutors can actually bring this to trial and even advocate for a harsher sentence for the Black woman than the cop and face no professional or legal consequences at all.
The danger that this case will proceed with yet more racism and yet worse effects is manifest. If you live in Baton Rouge, I urge you to contact East Baton Rouge District Attorney Hillar Moore III and express your opinion on the (in)justice so far in this case. If you live in Louisiana – anywhere – I urge you to contact your governor and/or your legislative representatives. They need to know that we’re watching.
And we’re not watching enough, there are hundreds if not thousands of cases as egregious as this one playing out across the USA, but this is the one that came to my notice today, and if we don’t tell them now that we see the abuse of law inherent in such arrests and in the many prosecutions and sentences in analogous circumstances, we will have no after-the-fact recourse due to the interaction of prosecutorial discretion and immunity.
Contact someone today, then if you have time, use social media or even just the comments below to let people know what you did. It will encourage others and, ultimately, expressing our outrage at a vastly mistargeted and unjust legal system is a vital precursor to making it change. Without our outrage, Seyaira’s mother Brittany Stephens will face prison time doing hard labor, and so will an endless future number of average people whose minor, quotidian errors come to the attention of an unjust system only because of the blatantly awful acts of people whom society would prefer not to blame.
Yes, that is a truly horrible case but – as you say – it’s probably just the one we know about, among the huge number that are buried.
When I was a kid there was a kid killed on a bicycle, hit by a cop. The cop was “in hot pursuit” and had his siren on so – apparently – it’s OK to run kids on bicycles over because they are supposed to get out of the way. Never mind that one of the other kids that witnessed it said that the cop put his siren on after he hit the kid. I remember that was when I started to understand that cops are not trustworthy; that nobody worth shit would want to be a cop.
Sometimes the cops reach out and make the consequences of their mistakes worse for their victims. I wish I believed there was an afterlife in which they would suffer for their actions but they're just going to get away with it and do it again. And when you hear these stories, you know that the other cops in that cops' unit know what happened. They know who's dirty and who's not and they help them hide.
This seems relevant to the topic…
https://realjusticepac.org/
I don’t know how you think this violates the Constitution, but doesn’t it sound fairly reasonable? What’s your response to the question “why we should have equal punishment?” in the generic situation you describe (one intransigent, one already reformed).
I mean, I don’t think we should be thinking in terms of punishment anyway, but what’s supposed to motivate the idea that our response must be the same, if we’re not considering the same circumstances? I certainly don’t think it should depend on how the prosecutor feels about it – maybe we could agree that, if anybody, a judge/jury should make this type of decision – but that doesn’t seem to be how you’re identifying the problem, since presumably you’d think the Constitution doesn’t/shouldn’t permit a judge/jury to do it either. Right?
Just a nitpick… What you mean by “a moment before” is obviously vague, but if it were only one or two seconds, the initial speed wouldn’t have been too much higher, since braking at those speeds wouldn’t be very effective at slowing the car down. High momentum * short time for low friction to do anything = small decelerating force, AKA small change in speed. If they hadn’t been speeding to begin with, there may not have been a crash at all, or anyway a small amount of braking could’ve made a bigger difference in that situation. But not when you’re driving like a maniac. Plus, at 94 mph, you’ve already traveled a long way in just “a moment,” so the driver needs some more moments to see/think/react before the brakes are activated.
Speeding is bad, and it makes your usual (non-maniacal, non-speeding) routine of slight braking for a short time essentially pointless, barely preferable (if you’re lucky) to hitting the accelerator. It will take much more time and distance to brake at 94+ mph, compared to 50 mph, even without factoring in the extra distance it takes for a person to react and begin braking at higher speeds (because t * bigger d/t = bigger d).
@Consciousness razor:
It doesn’t violate the Constitution and does sound reasonable. That’s the point. There’s a good argument for prosecutor’s discretion, but *if* a prosecutor should base decisions on racism instead of based on questions like these where reasonable people agree then the broad refusal to investigate prosecutors’ actions makes it impossible to get the resources or cooperation necessary to prove that an impermissible reason, like racism, was the actual source of the differential treatment.
I’m not sure what you’re saying here. Are you actually articulating that I think that there should never be different sentences for the same crime? If so, you’ve misread me much worse than even the previous misunderstanding might foreshadow.
It actually takes less time to slow down 5mph when starting from 100mph than from 10mph because at 100 mph you have literally 1000 times the air resistance as at 10mph, and the difference between air resistance at 5mph and air resistance at 95mph is even more vast. Yes, you cover more distance in that time, but also yes, your negative acceleration has a larger absolute value. The air resistance at those speeds is such that it actually slows the car on its own more effectively than a light touch on the brakes.
But also correct: this is a triviality. There is no comparison between the recklessness shown by the driver and the negligence shown by the mother.
I see. I misunderstood, when you said they were in “direct conflict.” And I agree with everything you said here. It’s certainly a dilemma.
I don’t know what difference it would make in general … but since the prosecutor here has (I’d assume) a relatively close relationship with the local police department, which means a potential for bias and so forth, couldn’t there be a good hypothetical legal argument (maybe not with current laws) that perhaps both cases should be handled in another jurisdiction? Or alternatively, some other entity like a judge, jury, advisory board (or something!) should have the discretion, or they should have to approve of it if this prosecutor still nominally “has” it.
Air resistance is increased, but friction between tires and road (i.e., braking) is decreased. I’m not entirely sure and would need to look at actual data, especially when you play around with all sorts of other conditions (wet roads, curves, hills, wind speed, etc.), but I doubt air resistance is the larger factor in general, meaning that the net effect is to decrease your ability to slow down.
Also, it’s not about decreasing by 5 mph. You want to go from 100 to 0, in order to avoid a collision (and not kill or even slightly injure improperly-fastened children). That obviously takes more time and distance, compared to starting from 5 and going to 0.
The items we’re actually interested in here are more like (100^2)/(5^2), which is of course much bigger than the ratio 100/5 (that is, 400 vs. 20). In the case at hand, 10,000 (100^2) is a lot more than 2,500 (50^2) at the speed limit. For reference, 94^2 = 8,836. And what I was saying is it takes a surprising amount of force to go from 100 to 94 mph (10000-8836=1164), which is nearly half of what you’d need starting at 50 in order to come to a complete stop, not slow down by 6 measly mph and still crash horribly. All very rough numbers, but you get the idea. So it seems about right that it couldn’t have been that much faster than 100mph initially, if they did have a fair amount of time and tried to brake, because braking just doesn’t do that much for you that quickly.
Anyway, yes, this definitely isn’t relevant to the case, but people should clearly understand just how wildly unsafe it is to be speeding like this.
I was only saying that deceleration at that speed is quick in order to justify speculation that the Corvette driver may have been going in excess of 100mph before noticing the Nissan. So, yes, in that case decreasing speed by 5mph (or, more precisely, 6) is what we’re talking about. Just because he was going 94 when the airbag triggered doesn’t mean he was going 94 when the Nissan driver made a decision that it was safe to turn left – that was my point.
In addressing this, I meant to justify an assignment of near-total responsibility for the accident to the Corvette driver (as few people would accurately gauge the speed of a car they can only see by headlights and are mostly reasonable to trust that the car will be moving within ~10mph of the speed limit). Assigning that level of responsibility to the Vette driver was important because I was comparing that responsibility to the mother’s responsibility and attempting to make the case that similar charges for these different levels of fault is morally reprehensible. I’m not worried about the exact math – I’m sure you’re correct. I’m just worried about whether we’re shifting responsibility to the Nissan driver executing a left turn. I think we shouldn’t because I think that the Corvette’s speed made it unreasonable to expect the Nissan driver to be able to make an accurate estimate of how safe it was to turn left in front of the Vette.
I hope that’s now clear. In any case, thanks for your comments. I always appreciate learning more physics.
As for the legal stuff:
The “direct conflict” comment is about how the constitution presumes that legal remedies will be available when violations of right occur, but prosecutorial discretion combined with prosecutorial immunity creates a situation where legal actions seeking remedies are prevented, and thus the accountability the constitution envisions is subverted.
Continuing on:
It’s generally a defense lawyer’s job to make such arguments (right now there’s a relatively common practice of asking for change of venue – but that changes judge and jury, it doesn’t necessarily change prosecutor. There are less common means to argue that a prosecutor has a conflict of interest and should be removed, but I don’t know exactly how commonly that argument is made, much less how often it succeeds. I’d be surprised if it’s anything other than very, very rare in both attempts and successes.
The problem with all of these things is that they come *after* arrest and indictment. Once you’ve been arrested and sent to jail unless and until you can afford bail, serious damage and disruption has been done. If the arrest is unjust, then presumably you’ll be found innocent in that other venue, but you’ll still have spent time in jail if you don’t have money for bail. You still may have lost your job for failure to show up, your children might have been taken away, etc. With discretion making the legal system unwilling to scrutinize prosecutor’s actions and immunity requiring intense scrutiny to acquire the level of evidence necessary to prove the violation of right, you’ll effectively never be able to sue to get back your lost wages or any other damages. It’s really, really fucked.
No, far from from it. I take it that everything I said shows just how reckless the Corvette driver was, by essentially losing control of their car and turning it into an unlicensed ground-to-ground missile. Before the Nissan even arrived at the intersection and its driver made any judgements about the situation, the Corvette was certainly traveling at high speed and endangering everyone and everything in its path. That’s why the cop is responsible for the crash. Full stop. It makes no difference whether they were initially going 94 mph or 100 or 110 or more.
Trying to pin it on that poor mother is ruthless, tribalistic assholery of the first order. This all just sounds like a transparent and patently ludicrous attempt to take the blame away from the off-duty cop. I’d like to think that enough people in the right places would have no trouble seeing that, do the right thing, and this all goes away like a bad dream…. But I’ve been disappointed too many times in the past, when I had thoughts like that.
Right, I’m sure the Nissan driver wouldn’t be able to judge it accurately, especially given the Corvette’s high speed. And it’s certainly not the Nissan driver’s fault that the cop was breaking the law and violating their reasonable expectations that oncoming traffic is traveling somewhere in the neighborhood of the speed limit.
Yeah, that’s definitely a big problem. I have no clue how to approach that.
Usual nit: I think your analysis assumes that the US federal constitution states or assumes that criminal prosecution is a core executive function. It’s not. I thought we discussed this already Crip Dyke, several times.
During the time of the founding, prosecution was not an executive power. It wasn’t even a governmental power. Prosecution was a power of every person in their individual capacity, just like filing a civil action for civil court was and is a power of every person in their individual capacity.
The law as it was originally practiced circa 1800 was that prosecutors had wide discretion, because they were often private persons, e.g. the victims. The victim had the unrestricted choice whether to pursue criminal charges or not, just like today someone has the unrestricted choice to pursue civil action in civil court or not. (I am unsure, but I suspect that historically, standing was not a thing like it is today, and anyone could press criminal charges regardless of whether they were a victim. I assume that the victim was given the first opportunity to press criminal charges.) Thus, to speak about what the constitution has to say on this issue is highly suspect. I suppose that you could invoke the 5th and 14th amendments regarding due process and equal protections, but you cannot invoke the constitution as specially governing the role of government prosecutors, because it was not written to govern the role of government prosecutors, because most prosecutors historically were private persons.
For a proper citation, which is unfortunately behind a paywall, see:
“Is Prosecution a Core Executive Function? Morrison v. Olson and the Framers’ Intent”
Stephanie A. J. Dangel
The Yale Law Journal
Vol. 99, No. 5 (Mar., 1990), pp. 1069-1088
Published by: The Yale Law Journal Company, Inc.
DOI: 10.2307/796596
Stable URL: http://www.jstor.org/stable/796596
Page Count: 20
For a free paper of lesser quality, with a few highly suspect claims and citations, but still IMO of overall good quality, I refer everyone to this paper:
“ARE COPS CONSTITUTIONAL?”
by Roger Roots
Seton Hall Constitutional L.J. 2001, 685
http://www.outpost-of-freedom.com/library/AreCopsConstitutional.pdf
I have some obvious solutions to that from our history.
1- Fix bail. The default assumption should be that most accused persons should be free pending trial. Any system that violates that assumption should be unconstitutional. Many people should be released under their own recognisance. Bail should only be required where there are individualized reasons of flight risk and/or for severe crimes like felonies, and bail amounts must be tailored to the person’s actual assets, e.g. bail schedules should be unconstitutional. Again, bail should be narrowly tailored to serve the legitimate purpose of preventing particular cases of heightened flight risk; bail should not be issued merely to prevent all flight. We must remember the standard that people are innocent until proven guilty, and this moral and ethical standard must also be applied to bail.
2- Go back to the circa 1800 standards for arrest. Arrest is generally not permitted unless there is the utmost urgency for warrantless arrest, or unless the arrester has an honest-to-goodness paper warrant.
The “utmost urgency” standard for warrantless arrest is generally limited to:
A- outstanding felonies, or
B- the arrester is a personal witness to the offense, and the offense is of a violent nature, and the arrest happens during or immediately following the offense, or
C- the arrester is a personal witness to the offense, and the offender refuses a lawful order to stop committing the offense, and the arrest happens during or immediately following the offense, or
D- there are individualized evidence that the suspect is a flight risk, weighed against the severity of the accused crime.
Warrants for arrest should not be issued for offenses where the person would be released without bail. Part of the application of a warrant for arrest should be a preliminary investigation into whether the accused would be released without bail. The proper method of criminal justice in most cases should be either issuing a citation or issuing a summons order to appear for trial. (Obviously, arrest warrants may be issued for “failure to appear” offenses.)
Together, I think this will solve the problem nicely.
There is the nasty problem of actual enforcement. Because the police enjoy so much special immunity for wrongful arrest, we would also need to address that problem. I think the solution there is also easy: Remove practically all special powers from the police regarding search, seizure, and use of force, including detention and arrest. In particular, the only kind of arrest should be arrest by warrant or a citizen’s arrest. Then, permit persons to obtain indictments in their individual capacity in front of government grand juries, so that the person in their individual capacity – or their appointed attorney – could be a criminal prosecutor in a government criminal court, so that victims of wrongful arrest could personally seek criminal sanction on cops who wrongly arrest.